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Another early holiday gift to labor from the NLRB: board implements final “ambush” election rule
BlogEmployment Law Worldview

On the heels of its decision requiring employers to permit employees with access to employer email systems to use those systems to send emails concerning non-business related matters, including union organizing and other communications concerning terms and conditions of employment (for example, soliciting support for wage and hour class actions) – see our post here on the issue – the National Labor Relations Board has delivered organized labor another gift by implementing its controversial final rule on union elections. Claiming that they will “modernize and streamline the process for representation disputes,” the rules represent a giant shift in how private sector US employees exercise their right to vote whether to be represented by a labor union. Although certain to be challenged in the courts, some of the key changes – effective April 14, 2015 – are:

employers will be required to identify all legal issues prior to an initial hearing (to be held as early as 8 days after the filing of the representation petition, which now can be filed electronically); failure to raise an issue in an initial statement of issues constitutes a waiver of any later-raised issue;

employers must provide a list of prospective voters prior to the initial hearing to the NLRB and the petitioning union; under the former rule, such a list was not required until after an election had been directed;

certain election eligibility issues, such as supervisory status, which previously could be litigated in the pre-election hearing, now are deferred to post-election procedures, where the right to raise them is no longer guaranteed;

the final pre-election list of voters (referred to as the Excelsior list), previously required 7 days after direction of the election, will now be required 2 days after direction of the election; and

employers will have to provide the petitioning union not only the home mailing address, but also the personal phone number and personal email address (if known) of voters appearing on the pre-election voter list.

By far, however, the most substantial impact of the changes is that under the new and so-called “modernized and streamlined” rules, union elections, which previously would take place no sooner than 42 to 45 days after the filing of a petition, could now be ordered in as few as 10 days after petition filing. No surprise, therefore, that these rules have been labeled the “ambush” election rules, as employers likely will now have far less notice and far less opportunity to communicate their message to employees prior to a union election. More information about the rules is set forth in a fact sheet posted on the NLRB’s website here.

Given these changes, it is imperative that employers have a plan of action ready to go in the event of union organizing activity. With the accelerated timeframes imposed by the new rules, and the serious consequences that may follow in the event an employer does not raise all possible issues at the earliest opportunity, taking a “we’ll figure it out as we go” approach no longer is a viable or business-sensible option.

As we mentioned in our prior post, the publication of this rule, along with the decision concerning employee access to employer email systems, may just be the beginning in a string of pro-union/pro-employee decisions to be issued by the National Labor Relations Board prior to the new year. Stay tuned for decisions to issue next week in the joint employer case (Browning-Ferris Industries) and scholarship football player case (Northwestern University), and possibly others.

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